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procedures, sales materials, product brochures and similar items. In turn, Unisys was to “employ resources in performing marketing efforts” and develop “the technical ability to be thoroughly familiar” with the products.13-7
Chapter 13 - Introduction to ContractsIn support of the district court's ruling that the U.C.C. did not apply, Advent contends that the agreement's requirement of furnishing services did not come within the Code. Moreover, the argument continues, the “software” referred to in the agreement as a “product” was not a “good” but intellectual property outside the ambit of the Uniform Commercial Code.Because software was a major portion of the “products” described in the agreement, this matter requires some discussion. Computer systems consist of “hardware” and “software.” Hardware is the computer machinery, its electronic circuitry and peripheral items such as keyboards, readers, scanners and printers. Software is a more elusive concept. Generally speaking, “software” refers to the medium that stores input and output data as well as computer programs. The medium includes hard disks, floppy disks, and magnetic tapes.In simplistic terms, programs are codes prepared by a programmer that instruct the computer to perform certain functions. When the program is transposed onto a medium compatible with the computer's needs, it becomes software. The process of preparing a program is discussed in some detail in Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inc., 797 F.2d 1222, 1229 (3d Cir.1986), cert. denied,479 U.S. 1031, 107 S.Ct. 877, 93 L.Ed.2d 831 (1987) and Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3d Cir.1983), cert. dismissed,464 U.S. 1033, 104 S.Ct. 690, 79 L.Ed.2d 158 (1984). See also Rodau, *675Computer Software: Does Article 2 of the Uniform Commercial Code Apply?, 35 Emory L.J. 853, 864-74 (1986).The increasing frequency of computer products as subjects of commercial litigation has led to controversy over whether software is a “good” or intellectual property. The Code does not specifically mention software.In the absence of express legislative guidance, courts interpret the Code in light of commercial and technological developments. The Code is designed “[t]o simplify, clarify and modernize the law governing commercial transactions” and “[t]opermit the continued expansion of commercial practices.” 13 Pa.Cons.Stat.Ann. § 1102 (Purdon 1984). As the Official Commentary makes clear:“This Act is drawn to provide flexibility so that, since it is intended to be a semi-permanent piece of legislation, it will provide itsown machinery for expansion of commercial practices. It is intended to make it possible for the law embodied in this Act to be